A prescritibilidade da pretensão de ressarcimento ao erário no âmbito dos Tribunais de Contas: o caso do Tema 899 do STF

Abstract

The Accounts Tribunal have an extremely important role in helping the exercise of external control, by the Legislative Power. However, with the development of this controlling body, there has been an expansion of constitutionally foreseen jurisdiction, in a phenomenon described by SUNDFELD as selfproclaimed new competences. This article, then, addresses an introduction of the historical context of the Accounts Tribunal in Brazil and goes through a brief description of their constitutional rules. In this sense, is presented the divergence between compliance control, strictly linked to legality, in the exercise of which command acts are issued; and operational control, in which the Courts of Auditors act in cooperation with the other Powers, based on economy, efficiency and effectiveness. From there, identifying the claim to compensation to the treasury as an exercise of compliance control, the necessary prescriptive limit to controlling action is discussed, in order to ensure legal certainty in its bias of stabilizing legal relations. Thus, we finally come to the analysis of Theme nº 899 of the General Repercussion of the Federal Supreme Court, in which the thesis of prescriptiveness of the “claim to compensate the treasury based on a decision of the Accounts Tribunal” was established. And, analyzing methodically this judgment in line with the judgments of Themes 666 and 897 of the General Repercussion, a conclusion is not possible, other than the broad application of the limitation of action, principle which is a rule in our constitutional order. Thus, the thesis still observed in the Accounts Tribunal that the statute of limitations would be restricted to the executive phase of the debt established in an internal decision of the Courts of Auditors and, furthermore, that, when a malicious act of improbity is found, it would be possible the application of the imprescriptibility established in the thesis of Theme nº 897. At the end, the need to adapt this controlling instance to the new – and legally more consistent – interpretation of article 37, §5, of the Constitution is addressed, emphasizing the finding, in within the scope of the Account Tribunal of the State of Minas Gerais, the delivery of recent decisions in accordance with the understanding defended herein.